VICE-CHANCELLOR KINDERSLEY'S COURT. FLOWER V. THE LONDON, BRIGHTON, AND SOUTH COAST RAILWAY COMPANY.-Feb. 23 and 24. Railway company-Power to purchase land—Affidavit of engineer.

A railway company will be restrained from compulsorily taking land which does not appear to be wanted for making their line, unless the company produces more proof that it is really wanted than the mere affidavit of their engineer.

This was a motion to restrain the defendants, their servants, agents, and workmen from further proceeding upon or prosecuting a certain notice to treat, dated the 9th January, 1865, so far as the same related to certain houses, land, and property, and also from taking any other proceedings for the purpose of obtaining or taking possession of, or entering upon, the last-mentioned houses, land, and property of the plaintiff, or any part thereof, under or by virtue of the notice to

treat.

The plaintiff, Mr. P. W. Flower, was owner in fee of an estate called "Long Hedge Farm," in the parish of Battersea, which he had purchased for building purposes; and for the development of this estate, he obtained in 1863 an act of Parliament, authorising him to make a road through it from the Lower to the Upper Wandsworth Road. He also made other roads, and let off portions of the estate to builders, under agreements for building; one portion to Messrs. Muspratt & Gowman; another to the same persons; and a third to Mr. Froude. Under these circumstances, a considerable number of houses were built, and others were in course of erection. The London, Brighton, and South Coast Railway Company required a portion of the plaintiff's land for the purposes of their railway, and in July, 1864, served the plaintiff with two notices to treat. The plaintiff then sent in his claims; but in November he was desirous of withdrawing his claims, and a correspondence ensued, the effect of which was, that the parties agreed that the notices to treat and the claims should be considered as withdrawn. On the 9th January the company served an amended notice to treat, comprising the lands originally required, and also additional lands. The lands included in this notice consisted not only of two strips of land, but of the whole of certain building plots which these strips ran through, and which on one of the strips projected on each side like the teeth of a saw. These plots were partly built upon; and the plaintiff, considering that from their shape, as delineated upon the company's plan, the land projecting from the strips could not possibly be wanted by the company for the purpose of making their line, and that the notice did not extend to land which must be taken to make the line continuous, so that the object of the company must be to purchase, declined to send in a claim in respect of more land than would be required by the company for the actual construction of their works. The company had treated with certain lessees from the plaintiff for the purchase of their interest. The plaintiff then filed his bill, praying as above; and affidavits were made on his behalf by persons of experience, that, in their opinion, the land in question could not possibly be wanted by the company for the purpose of making their line.

works by this act authorised, with all proper stations, wharves, bridges, works, and conveniences connected therewith (so far as they are shewn on the plans) in the lines or courses, and upon the lands delineated on the plans and described in the Books of Reference, and according to the levels defined on the Sections deposited as aforesaid, and the Company may enter upon, take, and use such of those lands as they think necessary for the purposes of this act." The affidavit of Sir Charles Fox, the company's engineer, contained the following passage:

On the other hand, the company relied upon their special act of the 27 & 28 Vict. (Battersea Lines, 1864), and upon the affidavit of their engineer. The 6th section of the act was as follows:

"Subject to the provisions and powers of deviation in this act and the incorporated acts contained, the Company may make and maintain the railways and

"The lands in question are or will be required for the purposes of the said last-mentioned act, and for the railway and works authorised by the said act." It did not, however, state specifically the purposes for which the land was wanted.

Glasse, Q. C., and Nalder, for the plaintiff, now moved for an injunction in the terms mentioned above, and contended that the company might take, against the will of the landowner, only that which they wanted for the purposes of their railway, and nothing for any other purpose; and that the land could not, from the company's own plans, be wanted for purposes of construction. The affidavit of the engineer was too vague and general.

Sir R. T. KINDERSLEY, V. C., inquired if the company would file a more explicit affidavit, to shew that the lands in question were actually wanted by the company for the purpose of their undertaking.

Rolt, Q. C., and Taylor, for the company, declined to do this, and said that it was impossible for the company to state at present the specific purposes for which these plots were wanted. They contended that the company were empowered to take what they "thought necessary for the purposes of the act:" and that the affidavit of the engineer, that the lands in question were necessary, was enough. Moreover, the company had, under the powers given them by the act, treated with the lessees, and stood in their shoes, so that the lessor ought not to be allowed to prevent their taking possession of the lands, and making their railway through it. [They cited Stockton v. Brown (9 H. L. C. 246); Cother v. Midland (2 Ph. 469); Sadd v. Maldon (6 Exch. 143); and Richards v. Scarborough (23 L. J., Ch., 110).]

Glasse, in reply, referred to Bentinck v. East Norfol 8 De G., Mac., & G. 286); River Dunn v. Lord (1 Railw. Cas. 155); and Eversfield v. Mid Sussex (3 De G. & J. 286).

Sir R. T. KINDERSLEY, V. C.-The case before the Court is, I think, a simple one. There is little or no complication as to the facts, and I do not think that the questions of law which arise out of those facts are such as to occasion any material doubt or difficulty. [His Honor then stated the facts, and proceeded:}The simple question, then, is this-has a railway company a right to take any land or house, of whatever kind or description, merely because their engineer makes an affidavit that it is, or will be, required for the purposes of the act, without mentioning what those specific purposes are?

Now, if that be law, I can only say, a law more likely to be detrimental to the public, and to persons who have the misfortune, if it be such, of railways coming through their property, I can hardly conceive, because it really comes to this-that there shall be no court of justice competent to try the question, whe ther the company do really fairly want the lands for the purpose of the railway, provided only the engineer will make an affidavit to say that they are, or will be, required for the purposes of the act, for the purpose of the railway company's undertaking. [His Honor here explained that such affidavits were usually mere matter of opinion.]

20

Now, I do not refer to any of the cases cited, except | the case in the House of Lords, because it appears to me that those other cases do not apply; and I think they were rather treated by Mr. Rolt as leading up to the decision in the case of The Stockton and Darlington Railway Company v. Brown (9 H. L. C. 246). Now, does that case in the smallest degree decide any such point? In the course of the argument I was pressed very much to assume, that because there was nothing in the report stated to the contrary, there was no statement on the part of the company for what special and particular purposes they wanted the bit of land in question. But I have now ascertained that the answer of the company specified in detail what the purposes were for which the company wanted to take the land. I need not go into those details, but there were sidings, standings, wharves, warehouses, and works of various kinds. They were all pointed out specifically as the purposes for which the company wanted to take the land.

Well, if that be so, how is that case the smallest authority for the proposition, that if the company choose to say, "We shall not tell you what the purposes are, but our engineer will make an affidavit to say, that in his opinion, the land is wanted, or the land will be wanted; that will be sufficient. He is the court of justice; our engineer is the only judge, the only judicial authority to whom you shall be entitled to make any reference on the subject whatever." So far from that case being an authority on the subject, when you look at the case, it shews that the question did not arise there, because the purposes were pointed out. [His Honor then stated the case, and said that the Vice-Chancellor Wood had decided that the company had the power of taking what was bonâ fide required for the purpose of their works, whatever they might be, and whether they would take the land for that purpose was left entirely in their discretion. The Lords Justices took a different view in this respect, and said that it might be more convenient to the plaintiff that the company should not make all the works on the north side of the railway towards the river, but should make the whole or some portion; and, therefore, employed Mr. Hawkshawe, as an expert and very eminent engineer, to examine the premises and make a report. On that report the Lords Justices made their decision, reversing ViceChancellor Wood's order. His Honor then proceeded.] It then went to the House of Lords, and the House of Lords simply decided this, not that the mere ipse dixit on the affidavit of the engineer, is to be conclusive of the question, whether the land is wanted for the purposes of the railway or the purposes of the act, but, that when the purposes are pointed out, and those are purposes which are bonâ fide for the purposes of the act or the undertaking, then the particular land which shall be taken for the purpose, or the mode in which that shall be marked out, must be entirely in the discretion of the company. As I have said, that case really does not appear to me to touch the present in any respect.

In the present case the company say, "We will not tell any specific purpose for which this is or will be wanted, with a view to the formation or use of this railway-the ipse dixit of our engineer is conclusive." They even declined, on an offer which I made to them at an early part of the argument, to make any further affidavit on the subject. And moreover they say, "Our act is special; giving us authority which, perhaps, other acts do not give, and arming us with the entire discretion as to what is or is not bonâ fide wanted for the purposes of the act." Now, the language of the act is, no doubt, large, and the clause in question a wide one; but it is not wider than the or

dinary clause in respect of the question now before me. The company are not, by their engineer, to say, "You shall not know what we think necessary for the purposes of the act; it is sufficient that our engineer says, that in his opinion certain things are necessary;" for that amounts to the proposition, that the Court shall not have the means of forming a judgment, whether it is bonâ fide or malâ fide required. It is admitted that the Court has a right to determine whether it is bonâ fide required, and if it is not so, to enjoin the company from taking; and yet the argument is, that the Court shall not know the details, upon which alone it is possible to form a judgment as to the bona or mala fides of the taking. It is said to be the business of the plaintiff to find out, and prove to the satisfaction of the Court that it is not bonâ fide. What evidence, except general evidence, can he bring forward, unless it is known to him and the Court what the purposes are. I have no hesitation, therefore, in saying, as to that part of the case, that it is entirely in favour of the plaintiff.

The next point is the contention, that by reason of the claims that had been sent in, in consequence of the first and second notices to treat, the plaintiffs had actually called upon the company to take some of the portions of land which they are now desiring to take; but the withdrawal of those notices to treat, and of the claim by mutual consent, makes it unnecessary to go into that question, further than to say, that thereupon, I think, the parties started afresh.

With regard to the first point, I should have observed, that with reference to the railway running diagonally across this piece of land, the company propose to take a strip of land, say of a uniform width of forty feet, with triangular projections at certain intervals on both sides of the strip, seven in number, like the teeth of a saw. On the face of this, the Court would say, what can these points possibly be wanted for? It is suggested in argument, that they may be wanted for the purpose of digging ballast; which comes to this-that the company may pull down a man's house (for in some of these cases the houses are built), under the pretext that they want to dig ballast out of the foundations of the house. Another suggestion is, that the company may want it some day, for the purpose of widening their railway. But for widening a railway they do not want these teeth sticking out at intervals, but a continuous strip; therefore they would have to get other land. It is also suggested that they may want them for coke ovens, or storing goods; but do they so want them?

There being, then, no authority for the proposition, that the company have a right to shelter themselves under this general affidavit of their engineer, I certainly will not lay down any such principle; and I must say, that the cases cited by Mr. Glasse seem to shew a strong leaning, if not actual decisions, the other way, viz. that the Court is to exercise its judgment, not whether it will be more convenient for the company to do it one way or the other, but whether they really have any bonâ fide purpose for which they want the land at all.

There remain only one or two minor points. One, the suggestion that the company have already treated with the two lessees, who each have building leases for ninety-nine years, in such a manner as to bind themselves; and that the interest of the lessees which they have thus got is of no use to them, unless they can get the landowner's or lessor's-that is, the plaintiff's-interest also. But it is a singular argument to say, that because the company have chosen to go and deal with the lessees, therefore the lessor is placed in a different position with regard to his obligation to let them have pieces of land, which otherwise they

would have no right to take, and that their having the lessees' interest entitles them to insist that the lessor shall let them take his interest. They further say, that the consequence of that dealing is, that having the lessees' interest for the unexpired portion of the ninety-nine years, they have a right to avail themselves thereof, and being armed by act of Parliament with power to make a railway across this land, the plaintiff has no business to prevent their entering, taking possession, and making their railway upon it. That also is an argument which cannot be maintained. If they have taken the lessees' interest, they stand in the lessees' shoes, and are not absolved by virtue of the act of Parliament from the obligation of performing the lessees' covenants. They are in no different position to any other assignee from a lessee; and a lessee would not be entitled to make a railroad across the land, because he had a lease for ninety-nine years. It would be a violation of the ordinary covenants contained in building leases. It appears to me, therefore, that the company have no right against the lessor, by virtue of their dealing with the lessees.

The question, then, comes to this-are the company entitled to enter and take possession, for the purposes of their railway, of these little triangular pieces of land, and of the houses or plots of land let out for building houses on the other land? And it appears to me that they are not.

His Honor then granted an injunction in the terms

mentioned above.

following explanation of the defendants' labels was given by an advertising agent, named Kennedy. He stated that the defendants having consulted him as to their advertisements, and as to the choice of a trademark, allusion was made in conversation to the "bull's head" used in the same trade by Messrs. Colman, and it was suggested that a better mark would be the whole of an animal. Afterwards, in December, 1862, Kennedy went to the cattle show at Islington, where he saw Mr. John Overman's "Prize and medal ox in any class," and over the animal a picture of it, and the idea occurred to him that this prize ox would serve as a trade-mark for the defendants' mustard. Kennedy accordingly bought the picture and resold it to the defendants, who had copies made of it on a reduced scale, the words "First prize and medal in any class, Exhibition 1862," being added, as above described.

The defendants and Kennedy deposed that they knew nothing of the plaintiffs' trade-mark in an "ox" label, or of his honourable mention in the Exhibition of 1862 until August, 1863, when it was found that the plaintiffs knew that the defendants were issuing show cards of the above character, and cautioned them not to do so.

sent suit until May, 1864, and the defence now was The plaintiffs, however, did not commence the predelay, and that there had been no infringement, as the plaintiffs' mark consisted in the combination of the picture of the animal with their own names, and that

Motion for decrce.--This was a suit to restrain the Messrs. Taylor Brothers, from infringing the trademark of the plaintiffs, the Messrs. Harrison, to distinguish the mustard prepared and sold by them.

The trade-mark was adopted by the plaintiffs in 1858, and consisted of the figure of an ox, on which was printed the word "Durham," the word "Harrison's" being printed above the animal, and the word "mustard" below it. At the Great Exhibition of 1862, the plaintiffs exhibited their mustard, and obtained an award of "honourable mention," of which they afterwards added a notice on their labels.

In May, 1863, the defendants affixed to their cannisters and tins of mustard labels containing, as a trade-mark, the figure of an ox, in form and attitude like that used by the plaintiff, but without the word "Durham," and with the_name" Taylor" substituted for 66 Harrison." The defendants' label also contained the words "First prize and medal" printed above the figure of the ox, and below it the words "In any class, Exhibition 1862." After the passing of the Exhibition Medals Act in July, 1863, 26 & 27 Vict. c. 119 (which imposes a penalty on persons who make false representations with respect to grants of medals and certificates by the Exhibition Commissioners), the defendants altered their labels, by adding the word "ox" after the word "medal," and changing "exhibition" into "exhibited." The

tomers in the trade relied was the maker's name only, though there was some evidence that the plaintiffs' mustard had been asked for as 66 ox mustard." Rolt, Q. C., and Freeling, for the plaintiffs. Sir H. Cairns, Q. C., Giffard, Q. C., and Drarry, for the defendants.

The following cases were cited:-Gordon v. Cheltenham Railway Company (5 Beav. 229); AttorneyEdelsten v. Vich (11 Hare, 78); and Hale v. Barros General v. Sheffield Company (3 De G., Mac., & G. 304): (9 Law T., N. S., 561).

the ox

plaintiffs, and that it was consistent with such plea that they knew, and had the means of knowing, that Moll was a mere agent.

Joinder in demurrer.

Sir G. Honyman, for the plaintiffs.-The plea is bad. The defendant does not say that he did not know that the goods at the time of the sale were the goods of another, but merely that he did not know that the goods were the goods of the plaintiff; and that is insufficient to support a claim of set-off. [Keating, J.This plea follows that in Buller on Pleadings.] Yes; but not the older authorities. The defendant was affected with knowledge of Moll being a mere agent, and that precludes him from setting up his right on Moll against the plaintiff. In Maanss v. Henderson (1 East, 335), where an agent in time of war opened for his principal, a neutral foreigner, a policy with his usual broker in his own name, but informing him that the property was neutral, it was held that this was sufficient notice, under the circumstances, that the agent, who was English, acted as agent only. Supposing that the purchaser does not know at the time that the factor is a mere agent, and knows it only afterwards, but before the goods are all delivered, and before any part of them is paid for, even in that case the purchaser cannot set off a debt due to him from the factor. (Moore v. Clementson, 2 Camp. 22). The defendant here, if he did not know that the plaintiff was the owner, knew that Moll was not, and this is sufficient to destroy the claim. The plea must shew that the debt intended to be set off existed before any knowledge of the agency, and the plea not shewing that, it is bad. [He referred also to Carr v. Hinchcliffe (4 B. & Cr. 547); Fish v. Kempton (7 C. B. 687); and Dresser v. Norwood (10 Jur., N. S., 23; in error, 851).]

W. Williams, for the defendant, contended that the plea was a good plea; that it was sufficient to state that at the time of the sale the debt became due, which implied that the debt could not have been contracted afterwards; and that the agent acted as principal with his principal's consent, without further allegation; and, in reply to the suggestion of the Court, he submitted that it was rather for the plaintiffs to reply, than for the defendant to amend. [He referred to Fish v. Kempton (supra, Wilde, B.)]

*Plaintiffs' points:

Cur, adv. vult.

1. That the plea is bad in not alleging that the defendants did not know, nor had not the means of knowing, that Moll was merely an agent, but only that they did not know, and had not the means of knowing, that Moll was agent for the plaintiffs, and that it was consistent with the plea that the defendants knew, and had the means of knowing, that Moll

was a mere agent.

2. That if the defendants knew, or had the means of knowing, that Moll was an agent, it is immaterial whether they knew that he was agent for the plaintiffs.

3. That the plea is defective in not alleging that at the time when Moll became indebted to the defendants they were ignorant that Moll was an agent only, and that if at the time the debt from Moll to the defendants was contracted, they knew he was merely an agent, they cannot avail themselves of the right of set-off.

4. That, under the circumstances stated in the plea, the defendants are not entitled to set off against the plaintiffs' claim

to the debt due from Moll to the defendants.

Feb. 27.-WILLES, J., delivered the judgment of the Court.-This was an action for goods sold and delivered. The sixth plea, the validity of which is in question, alleged a set-off against a person named Moll, who is stated to have been the factor of the plaintiffs. To that plea the plaintiffs have demurred, and the defendants joined in demurrer. The case was argued before the Lord Chief Justice, my Brother Keating, and myself, and we took time to consider. The question is, whether the plea sufficiently identifies Moll with the plaintiffs, so as to shew that a set-off against him is available in an action by them; and there was an attempt to sustain that by a reference to a series of authorities, beginning with that of George v. Claggett. The plea alleges, that Moll was intrusted by the plaintiffs with the possession of the goods, and that he sold them as his own goods, with the consent of the plaintiffs; and then it goes on to state, that at the time of the sale and delivery, the defendants knew not, and had no means of knowing, that the plaintiffs were the owners of the goods, or were interested therein, or in the sale, or that Moll was the plaintiffs' agent; and that at the time of the sale and delivery of the goods, and before the defendants knew that the plaintiffs were the owners of the goods, or in any manner interested therein, or that Moll was the agent of the plaintiffs in the sale thereof, Moll became indebted to them (the defendants) in the amount which they seek to set off. It is necessary to consider whether the averments in the plea satisfy the conditions under which a debt due by a factor can be set off against the principal. The rule of law is clearly stated in the marginal note to George v. Clag gett (7 T. R. 309; 2 Smith's L. C. 77), that "if a factor sell goods as his own, and the buyer knows nothing of any principal, the buyer may set off any demand be may have on the factor against the demand for the goods made by the principal." We may observe, as has often been pointed out, and clearly so by Holroyd, J., in the case of Carr v. Hinchcliffe, that the setting up as a defence against the principal that which would be a defence against the factor, with the view of extinguishing the debt by payment in that way, was a right which the defendant had; but the difficulty was in applying the Statute of Set-off, and in saying that the terms of the statute were satisfied, so that the debt of the factor should, for the purpose of the action, be considered as the debt of the principal, who was the plaintiff. That difficulty, however, was got over, and the factor and the principal were identified by that decision, for the purpose of the statute: and it was held, that the existence of a set-off, with the knowledge of the agency, enabled the debtor to set up against the principal the defence of setoff as a quasi extinguishment, notwithstanding the literal words of the Statute of Set-off. In order to make the defence a valid defence within the rule stated, it seems obvious that the plea must shew, as it does shew, that the contract was made by a person whom the plaintiff intrusted with the possession and ownership of the goods, and that he sold them as his own, in his own name as principal, with the authority of the plaintiff, and that the defendant then believed him to be the principal in the transaction. Upon the true construction of this plea, however, taking all the averments together, it is, we think, consistent with the statements in it, that the seller Moll was the factor, and so sold the goods, as it is usual for a factor to do, bought the goods knowing that the seller was not the as his own, and yet that the defendants may have true owner, and that he had a principal, but not knowing who that principal was and so the averment in the plea would be proved. Indeed, the plea studiously avoids stating that which is the gist of such a defence,